Chairman Specter, Senator Leahy, and
Members of the Committee, thank you for the opportunity to appear today
to discuss S. 2831, the “Free Flow of Information Act of 2006,” and
unauthorized disclosures of classified information by the media. While
others at the Department of Justice previously have testified on these
matters, this is my first opportunity to talk with you about them. The
issues are weighty, and I commend the careful attention you are giving
them.

Let me begin with these facts and observations,
upon which we should all agree. The Department of Justice shoulders the
important obligation of enforcing the law and ensuring the public
safety against foreign and domestic threats. We also are duty bound to
administer justice with fairness. Our work requires a constant
balancing of interests.

A determination to commence prosecution requires a
careful assessment of all facts and circumstances. Our guidepost, as
stated in the United States Attorneys’ Manual, is whether the
“fundamental interests of society require the application of the
criminal laws to a particular set of circumstances,” recognizing that
any decision to bring charges “entails profound consequences” for all
affected persons. U.S. Attorneys’ Manual § 9.27.001. In all instances,
the Department’s attorneys represent and must protect the public’s
interest in the fair and balanced administration of justice.

How we conduct investigations is no less important.
We owe crime victims, those suspected of committing crimes, and the
public the duty of conducting diligent and thorough investigations. Our
search is for the truth, and our record shows that our approach has
reflected measured and careful judgments. Overreaching does not serve
justice, and the Department’s men and women understand and respect that
principle.

Our measured approach manifests itself in the daily
administration of justice around the country. Our attorneys, for
example, take great care to ensure that grand jury investigations are
both full and fair. Indeed, the very institution of the grand
jury––consisting as it does of ordinary citizens––provides an added
layer of balance to our investigations. To be sure, though, a grand
jury operates with a broad and time-honored mandate: to search broadly
for the truth and enlist everyone with potentially useful information
in that search. As the Supreme Court has explained, the “investigative
power of the grand jury is necessarily broad if its public
responsibility is to be adequately discharged.” Branzburg v. Hayes, 408
U.S. 665, 700 (1972).

In our investigations and prosecutions we always
respect civil liberties, including the First Amendment rights of
citizens and the media. Since the Founding era, journalists have
contributed invaluably to our public discourse. Every schoolchild
learns of the importance of Thomas Paine’s contention, penned as it was
in a revolutionary-era pamphlet, that “common sense” compelled a
separation from England and the establishment of a new nation. More
modern examples abound. Indeed, it is difficult, if not impossible, to
read any newspaper or Internet news site and not find commentary on
issues of enormous importance to our communities and nation. The
Department of Justice fully respects and is committed to protecting the
media’s right to comment, however favorably or critically, upon the
course of government and the actions of public officials.

Striking the right balance today between vigorously
investigating and prosecuting crime and protecting civil liberties
presents unique challenges. Our nation is engaged in a war on terror,
and the Department’s highest priority is to prevent another attack. Our
prevention efforts must be tailored to the nature of the enemy we
face––extremists constantly searching for ways to penetrate our
communities and inflict death and destruction upon our people. Secrecy
and surprise are cornerstones of our enemy’s approach. Our response
must follow suit. Our counterterrorism arsenal must include secrecy
among its weapons. To publish the full contours of our prevention
efforts would provide our enemy with unacceptable opportunities.
Certain information must be kept classified and outside the public
domain.

In making this point, the Department fully
appreciates that there is not unity of opinion as to how America should
conduct its war on terror. We are fighting a new kind of war that
regularly presents new kinds of challenges, and Americans rightly are
asking new kinds of questions. This debate is healthy and welcomed.

But our public dialogue, in which journalists play
an essential role, cannot be permitted to itself breach our nation’s
security. In this regard, the media bears the important responsibility
of striking the proper balance in its reporting––to keep Americans
informed and to comment broadly without arming our enemy or risking
danger to our troops, communities, or nation. The Department
appreciates the care with which the media has undertaken this
responsibility.

My larger point is that our Constitution permits the
proper balance to be struck. As a nation, we are fully capable of both
protecting our security and preserving the media’s right to engage in
robust reporting on controversial issues. Security and free speech are
not mutually exclusive. Or, as Justice Goldberg famously observed, the
Constitution is “not a suicide pact.” Kennedy v. Mendoza-Martinez, 372
U.S. 144, 160 (1963).

The Department of Justice has developed a strong
record in striking the right balance. I want to describe that record by
explaining how we investigate leaks of classified information. Let me
emphasize at the outset the seriousness of the problem posed by the
unauthorized disclosure of classified information. An individual who
leaks classified national defense information commits a crime. To talk
about such leaks, then, is to talk about criminal conduct. There is no
virtue in leaking; it reflects a profound breach of public trust and is
wrong and criminal.

The consequences of leaking are extraordinarily
grave. Leaks lay bare aspects of our national defense; they provide a
window into steps we are taking to secure our country; they risk arming
terrorists with precisely the information needed to avoid detection in
plotting an attack upon our troops or communities; in short, they
expose and damage our nation. These concerns and realities have been
echoed by the President and Members of Congress in both the House and
the Senate, including Members of this Committee.

Some skeptics have tried to paint those who
unlawfully leak classified information to the press as whistleblowers
caught in an intractable dilemma between, on the one hand, allowing
what they believe may be unlawful activity to continue within the
Government and, on the other hand, unlawfully disseminating information
to someone with no authority to receive it. These so-called
whistleblowers, the argument runs, escape the dilemma by conditioning a
disclosure of classified information upon a journalist’s promise of
confidentiality.

This dilemma is a false one. It incorrectly assumes
that the media is an individual’s only outlet. Not so. Congress took
care to ensure that no Government employee faces such a dilemma by
enacting the Intelligence Community Whistleblower Act of 1998. That
statute established mechanisms through which members of the
intelligence community could voice concerns while ensuring that
classified information would remain secure. In the first instance, the
statute directs individuals to relay their concerns to their agency’s
Inspector General. Employees who are dissatisfied with their Inspector
General’s response are then authorized to bring their concerns to an
appropriate committee of Congress in its oversight capacity.

With these mechanisms in place, it is a mistake to
dub an individual who leaks classified information a whistleblower. A
leaker commits a crime; a whistleblower, by contrast, follows the legal
course of disclosure enacted into law by Congress. The difference is
significant and should not be not be lost on the Committee.

Upon learning of a leak of classified information to
the media, our primary focus is on identifying and prosecuting the
leaker, not the reporter or media organization who received the leaked
information. This focus is reflected in the Department’s guidelines for
the issuance of subpoenas and other compulsory process to the media.
Codified at 28 C.F.R. § 50.10, the guidelines demonstrate how seriously
the Department takes any investigative or prosecutorial decision that
implicates members of the news media. This policy, by its terms, seeks
to “balanc[e] the concern that the Department of Justice has for the
work of the news media and the Department’s obligation to the fair
administration of justice.” 28 C.F.R. § 50.10.

The details are important. The guidelines provide
that “[a]ll reasonable attempts should be made to obtain information
from alternative sources before considering issuing a subpoena to a
member of the news media.” Id. § 50.10(b). They also call for
undertaking negotiations with the media before resorting to a subpoena.
Even then the prosecutor should do so only if there are “reasonable
grounds to believe, based on information obtained from nonmedia
sources, that a crime has occurred, and that the information sought is
essential to a successful investigation––particularly with reference to
directly establishing guilt or innocence.” Id. § 50.10(f)(1).

This process ordinarily plays out across multiple
levels within the Department of Justice. A prosecutor seeking
confidential source information from a journalist must justify the
request in writing. If the request receives approval from a United
States Attorney, it then comes to Washington for careful vetting within
our Criminal Division, Office of Public Affairs, the Office of the
Deputy Attorney General, and, ultimately, the Office of the Attorney
General. The Attorney General’s approval is mandatory in all cases in
which cooperation fails with a particular journalist.

This exhaustive and rigorous process is undertaken
for a reason––to enable close scrutiny by career prosecutors and to
ensure that subpoenas seeking confidential source information from
journalists are issued only as a matter of last resort. In the past 15
years, the Attorney General has approved only approximately 13 requests
for media subpoenas that implicated source information. This record
reflects restraint: we have recognized the media’s right and obligation
to report broadly on issues of public controversy and, absent
extraordinary circumstances, have committed to shielding the media from
all forms of compulsory process. The Department of Justice will
steadfastly continue to strike this same balanced approach in our
investigations.

Our approach fully complies with the law. While the
Supreme Court repeatedly has stressed the importance of the media’s
role in our society, it also has decisively declared that the media is
not exempt from the general obligation––shared by all citizens––to
provide evidence to grand juries investigating crimes. The seminal case
is Branzburg v. Hayes, 408 U.S. 665 (1972). The Supreme Court in
Branzburg held that journalists had no First Amendment right to refuse
to comply with a subpoena and provide testimony to a grand jury
regarding information received from a confidential source. See id. at
690-91. The Court’s message was plain: “[W]e cannot accept the argument
that the public interest in possible future news about crime from
undisclosed, unverified sources must take precedence over the public
interest in pursuing and prosecuting those crimes reported to the press
by informants and in thus deterring the commission of such crimes in
the future.” Id. at 695. Other courts have reinforced this conclusion.
See, e.g., In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141,
1146-48 (D.C. Cir. 2006); New York Times v. Gonzales, No. 05-2639, 2006
WL 2130645, at *11-12 (2d Cir. Aug. 1, 2006).

No aspect of the legal landscape or the Department’s
guidelines has inhibited the media from robustly reporting and
commenting on controversial issues. To the contrary, journalists have
time and again proven themselves more than able to gather information
and disseminate news and commentary on the most controversial matters
of the day. Only in extraordinarily rare circumstances––approximately
13 cases in 15 years––has the Department determined that the interests
of justice warranted compelling information implicating sources from a
journalist. We have struck the right balance and will continue to do so
in the future.

I want to turn now to S. 2831, the “Free Flow of
Information Act of 2006.” The Department of Justice firmly opposes the
bill. In recent months, at least three Department officials have
provided statements or offered testimony on the proposed legislation,
and on June 20 of this year we detailed our objections in a views
letter. I do not intend to rehash all of the points made in our letter
or prior testimony. Allow me instead to focus on the bill’s most
serious deficiencies and to address the practical consequences that
would befall the administration of justice and criminal defendants if
the bill became law.

As an initial matter, proponents of the bill contend
that it is a necessary response to certain recent high-profile cases in
which the Department’s actions have purportedly signaled a newfound
eagerness to stop journalists from reporting of leaks. The contention
is misguided. The Department has not changed its policy or approach to
investigating leaks. We continue to follow the same guidelines and
processes that have resulted in the issuance of subpoenas implicating
source information in only approximately 13 cases in the last 15 years.
We continue to regard journalists as a source of last resort. There is
not one shred of evidence supporting the notion that the Department of
Justice is out to get the media.

Nor is there
anything but conjecture to support the contention that journalists are
writing in fear. Indeed, the argument parallels the same ones presented
to, and rejected by, the Supreme Court in Branzburg in 1972. The
Supreme Court dismissed as “speculative” the assertion that reporting
would be chilled by requiring journalists to provide confidential
source information to a grand jury. Branzburg, 408 U.S. at 694. If the
critics in Branzburg were to be believed, we would have seen a marked
decline in press freedoms in the ensuing years. Of course, the opposite
has occurred. We live in an age in which news and critical commentary
is everywhere––in print, over airwaves, and throughout the Internet.
The proponents of the bill have not proven their case; they have failed
to demonstrate that the Department of Justice has sought to compel
confidential source information from journalists more aggressively or
in greater numbers than it has in the past. The proposed bill is a
solution in search of a problem.

Let there also be no doubt about the ramifications the bill would have
on the administration of justice. The bill would work a dramatic change
in current practice and severely hamper our ability to investigate and
prosecute serious crimes, including acts of terrorism.

Under Section 9 of S. 2831, a court must determine
“by a preponderance of the evidence” that “an unauthorized disclosure
has significantly harmed the national security in a way that is clear
and articulable” and that such harm “outweighs the value to the public
of the disclosed information.” By its terms, then, the bill not only
transfers to the judiciary the authority to second-guess the
Executive’s determinations regarding what does and does not harm the
national security, it also licenses courts to find that a reporter’s
promise to conceal a source’s identity can override national security
interests, even when harm to national security is conceded. The only
necessary finding is that the public interest was sufficiently strong
to justify disclosure of the classified information.

The Department of Justice is particularly concerned
about Section 9 and its transfer of authority to make national security
determinations to the federal judiciary. The bill would force federal
judges into making extremely difficult decisions about the national
security implications of a particular leak––decisions that would
require extensive and nuanced knowledge about our larger national
security strategy, the details of classified programs, and the
ground-level impact of certain information being disseminated to the
public. The process would require the submission of ample evidence and
consume inordinate amounts of time, which we rarely can afford to lose
when confronted with the dynamics that define national security
challenges today. Perhaps Judge Wilkinson put these concerns best in
his concurring opinion in United States v. Morison, 844 F.2d 1057 (4th
Cir. 1988):

Evaluation of the government’s [national
security] interest . . . would require the judiciary to draw
conclusions about the operation of the most sophisticated electronic
systems and the potential effects of their disclosure. An intelligent
inquiry of this sort would require access to the most sensitive
technical information, and background knowledge of the range of
intelligence operations that cannot easily be presented in the single
‘case or controversy’ to which courts are confined. Even with
sufficient information, courts obviously lack the expertise needed for
its evaluation. Judges can understand the operation of a subpoena more
readily than that of a satellite. In short, questions of national
security and foreign affairs are of a kind for which the Judiciary has
neither aptitude, facilities nor responsibility and which has long been
held to belong in the domain of political power not subject to judicial
intrusion or inquiry.

Id. at 1082-83 (Wilkinson, J., concurring).

Section 9 of the bill would thrust the judiciary
into law enforcement matters reserved by the Constitution to the
Executive branch. Within the context of confidential investigations and
secret grand jury proceedings, determinations regarding the national
security interests are best made by members of the Executive
branch––officials with broad access to the full scope of information
necessary to protect our national security. As Justice Stewart
explained in his concurring opinion in the Pentagon Papers case, “it is
the constitutional duty of the Executive––as a matter of sovereign
prerogative and not as a matter of law as the courts know law––through
the promulgation and enforcement of executive regulations, to protect
the confidentiality necessary to carry out its responsibilities in the
fields of international relations and national defense.” New York Times
Co. v. United States, 403 U.S. 713, 729-30 (1971) (Stewart, J.,
concurring).

Let me be clear about what is at stake in Section 9.
Under existing law, an individual wishing to challenge a subpoena bears
the burden of proving that the request for particular evidence is
unreasonable or oppressive. The proposed bill, by contrast, saddles the
Government with the obligation of going into a federal court and
producing evidence of a quantity sufficient to prove clear and
articulable harm to our nation’s security. In addition to infringing
upon constitutionally-conferred executive authority, the bill goes a
step further and makes matters all the worse: it places a thumb on the
scale in favor of the reporter’s privilege. The Government cannot
obtain confidential source information unless it first proves that the
harm to our national security would outweigh the public’s interest in
maintaining the free flow of leaked information. Our national security
is too important to be subjected to these standards and burdens.

Section 9, in short, would reflect bad policy and
make bad law. The practical impact, moreover, could be enormous. To
provide a simple example, consider a journalist who publishes a
detailed story about covert classified efforts to track the movements
of international terrorists. The story also contends that aspects of
the covert program have encroached on privacy interests of certain
individuals by mistakenly identifying them as terrorists. The
journalist attributes the information to a confidential source and
describes the source as a government insider who is so concerned about
the program that he intends to resign and relocate outside the United
States, taking with him documents detailing the program’s operation.

Despite their best efforts, the Department of
Justice and the intelligence community are unable to identity the
confidential source through independent means, and the journalist
refuses to cooperate voluntarily with the Department. To prevent
further harm to national security, the Attorney General quickly
approves a narrowly-tailored subpoena that seeks only the identity of
the journalist’s source. The journalist believes the public has a right
to know about the covert program and the potential privacy problems and
thus challenges the subpoena in court.

Under current law, to prevail on a motion to quash,
the journalist would be required to prove the subpoena request was
unreasonable and oppressive. Given the circumstances, it is unlikely
the journalist could make such a showing and thus the Department would
learn the leaker’s identity and apprehend him in time to prevent
additional harm to our national security. Under the proposed bill,
however, the Department would first be required to provide affirmative
proof that the leak damaged our national security. While it is possible
that such a showing could be made in this scenario, it is equally
likely that a court could find that the harm was not yet realized or
capable of specification. That finding would be enough to defeat the
subpoena, even though the journalist would have done nothing other than
file the motion to quash, thereby shifting the burden of proof to the
Government. Moreover, even if a court credited the Department’s showing
of harm, the court nevertheless could find that public’s interest in
learning about the alleged privacy violations outweighed the
Government’s interests. That finding would defeat the subpoena.

This example is both realistic and revealing. It
proves that the proposed legislation would impose significant and
potentially crippling burdens on federal law enforcement in cases
directly affecting our national security. Given the Department’s record
of restraint in compelling confidential source information from
journalists, the bill would inflict unjustifiable harm upon a proven
approach to effective law enforcement.

Section 9 is by no means the only provision of S.
2831 with serious deficiencies. The bill is deficient in the simplest
of dimensions. Take, for example, the definition of “journalist” in
Section 3. It includes only journalists who work for financial gain and
thereby discriminates against individuals who, for no money, contribute
a story to a local newspaper. This deficiency leaves the bill wide open
to serious constitutional challenge on the ground that it unjustifiably
discriminates against categories of speakers.

Section 5 of the bill raises grave constitutional
concerns of an altogether different variety. The Sixth Amendment
entitles defendants to compel witnesses to appear in court and testify.
Section 5, however, would permit defendants to access such a witness
only if, “based on an alternative source,” they are able to show that
the witness had information relevant to a successful trial defense. The
Sixth Amendment imposes no such “alternative source” requirement.
Section 5 is egregiously defective in a more basic way. It requires a
court to balance criminal defendant’s “constitutional rights” against
the “public interest in newsgathering and in maintaining the free flow
of information.” Such a balancing requirement is indefensible;
individuals facing grave criminal penalties, say, for example, a life
sentence, should not have their “constitutional rights”––indeed, their
liberty––thwarted by the interest of “newsgathering.”

Other points warrant emphasis. Some supporters of S.
2831 have suggested that the bill is no more than a codification of the
Department’s own guidelines. That view is badly mistaken. The
Department’s guidelines preserve the constitutional prerogatives of the
Executive branch with respect to key decisions regarding, for example,
the kind of evidence that is presented in grand jury investigations and
what constitutes harm to the national security. The proposed
legislation, by contrast, would shift ultimate authority over these and
other quintessentially prosecutorial decisions to the judiciary.
Furthermore, the proposed legislation would replace the inherent
flexibility of the Department’s guidelines, which can be adapted as
circumstances require––an especially valuable attribute in a time of
war––with a framework that is at once more rigid (by virtue of being
codified by statute) and less predictable (by virtue of being subject
to the interpretations of many different judges, as opposed to a single
Department with a clear track record of carefully balancing the
competing interests).

I have also heard it suggested that the Department’s
concerns are overblown because many states have enacted workable media
shield laws. Such analogies are entirely misplaced. An individual
state’s decision to provide a reporter with protection against a
subpoena from a prosecutor investigating crimes under state law,
serious though those crimes may be, says little about the virtues of
providing journalists with such protections at the federal level. The
Federal Government, unlike state and local governments, is uniquely
responsible for providing for the national defense, working with our
international partners to prevent acts of terrorism, and investigating
crimes with expansive national and international ramifications, such as
terrorism, espionage, and leaks of classified information.

In closing, I wish to end where I began. The issues
before the Committee are of enormous significance. They require each of
us to acknowledge the necessity of balancing important interests and
then to focus on the Department of Justice’s record in striking that
balance. That record, as I have explained, is one of success and
restraint. We seek to work cooperatively with the media, and only
rarely has the Department determined that the interests of justice
warranted seeking to compel a journalist to reveal information obtained
from a confidential source. The rarity of those occasions reflects the
Department’s commitment to respecting the media’s important role within
our society. The media has been and will remain a source of last resort
in our investigations.

Against the backdrop of the Department’s record and
the lack of any evidence showing that our approach has meaningfully
chilled robust reporting by the media, I respectfully urge the
Committee not to support S. 2831. The bill would significantly weaken
the Department of Justice’s ability to obtain information of critical
importance to protecting our nation’s security, inject the federal
judiciary to an extraordinary degree into affairs reserved by the
Constitution for decision within the Executive branch, and, at bottom,
encourage the leaking of classified information.

Thank you again for the opportunity to testify, and I look forward to answering the Committee’s questions.